Exhibit 10.3
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”),
effective October __, 2009 (“Effective Date”), is made
between Golden Eagle International, Inc., a Colorado corporation
(“Employer”), and Tracy A. Madsen
(“Executive”), but the effectiveness of its terms is
subject to approval by the shareholders of the Employer as set
forth in Section 22, below.
RECITALS
WHEREAS , the Board of Directors of Employer desires to
provide for the continued employment of
Executive. Executive is willing to commit himself to
continue to serve Employer, on the terms and conditions herein
provided, although this Agreement may be amended at any time by
written agreement among the parties; and
WHEREAS , in order to effect the foregoing, Employer and
Executive wish to enter into this Agreement on the terms and
conditions set forth below.
AGREEMENT
NOW,
THEREFORE, in
consideration of the mutual covenants herein contained, and other
good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the parties agree as
follows:
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.
Employment . Employer hereby employs Executive,
and Executive agrees to be employed as Vice President for U.S.
Administration and Chief Financial Officer. Executive
will report to the President and Chief Executive
Officer. Changes may be made from time to time by
Employer, in its sole discretion, to the duties, reporting
relationships and title of Executive. Executive will
devote full time and attention to achieving the purposes and
discharging the responsibilities of his
position. Executive will comply with all rules, policies
and procedures of Employer as modified from time to time, including
without limitation, rules and procedures set forth in the
Employer’s employee manuals and handbooks, supervisor’s
manuals and operating manuals. Executive will perform
all of Executive’s responsibilities in compliance with all
applicable laws and will ensure that the operations that Executive
manages are in compliance with all applicable
laws. During Executive’s employment, Executive
will not engage in any other business activity that, in the
reasonable judgment of the Board of Directors, conflicts with the
duties of Executive under this Agreement, whether or not such
activity is pursued for gain, profit or other pecuniary
advantage.
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.
Term of Employment . The term of employment
(“Term”) shall be for three years from the Effective
Date unless terminated earlier in accordance with the terms and
conditions of this Agreement or unless the shareholders of the
Employer do not approve this Agreement by not later than October 7,
2010 as required by Section 22 hereof (at which time this Agreement
will terminate automatically without liability of either the
Employer to the Executive or the Executive to the Employer if the
shareholders of the Employer have not approved its terms by such
date). Assuming the approval by the shareholders of the
terms of this Agreement, following expiration of the Term as set
forth above the Term of this Agreement will automatically renew for
successive one-year terms unless and until the Employer or the
Employee provides notice at least 60 days in advance of the
expiration of the current Term that the Employer or the Employee
will not accept a renewal term.
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3.
Compensation . For the duration of
Executive’s employment hereunder, the Executive will be
entitled to compensation that will be computed and paid pursuant to
the following subparagraphs.
3.1
Base Salary . Employer will pay to Executive a
base salary (“Base Salary”) at an annual rate of
$110,000.00, subject to withholdings, ratably in accordance with
Employer’s policies, so long as Executive remains
employed. Executive’s Base Salary will be reviewed
annually during the term of Executive’s employment and may be
adjusted based on such review. Any increase made to the
Base Salary shall be in the sole discretion of
Employer. Executive’s Base Salary will not be
reduced by Employer unless a material adverse change in the
financial condition or operations of Employer has occurred or
unless Executive’s responsibilities are altered to reflect
less responsibility.
3.2
Discretionary Cash Bonus. Executive shall be
eligible for a discretionary cash bonus (“Cash Bonus”)
equal to an amount as determined by the Compensation Committee of
the Board of Directors (the “Committee,” which term,
when used herein, shall include the entire Board of Directors in
the absence of a Compensation Committee) and shall be based on the
condition of Employer’s business and results of operations,
the Committee’s evaluation of Executive’s individual
performance for the relevant period, and the satisfaction of goals
that may be established by the Committee. Each Cash
Bonus shall be paid in the Committee’s discretion.
3.4
Equity-based Compensation. Executive shall be
entitled to participate in all equity-based compensation plans
offered by Employer and as determined by the
Committee. Executive understand that as of the date of
this Agreement, the only equity-based plan offered by Employer is
the Incentive Share Option Plan.
3.5
Performance Standards. The Executive and the
Employer agree that the Executive’s discretionary cash bonus
and equity-based compensation will be based on the
Executive’s and the Employer’s achievement of
performance goals that may be established by the Committee after
discussion with the Executive and his supervisors (if
any). Until the Employer and the Committee establish
performance goals, the Executive’s discretionary cash bonus
and equity based compensation will be wholly
discretionary.
4. Other
Benefits.
4.1
Certain Benefits. Executive will be eligible to
participate in all employee benefit programs established by
Employer that are applicable to management personnel on a basis
commensurate with Executive’s position and in accordance with
Employer’s policies from time to time, but nothing herein
shall require the adoption or maintenance of any such
plan. Notwithstanding the foregoing, Employer shall
provide full medical and dental insurance coverage for
Executive. Employer shall also provide to Executive one
parking space near Employer’s corporate office on a yearly
basis, and Employer will pay all related parking fees.
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4.2
Vacations, Holidays and Expenses . For the
duration of Executive’s employment hereunder, Executive will
be provided such holidays, sick leave and vacation as Employer
makes available to its management level employees
generally. Employer will reimburse Executive in
accordance with company policies and procedures for reasonable
expenses necessarily incurred in the performance of duties
hereunder against appropriate receipts and vouchers indicating the
specific business purpose for each such expenditure.
4.3
Right of Set-off . By accepting this Agreement,
Executive consents to a deduction from any amounts Employer owes
Executive from time to time (including amounts owed to Executive as
wages or other compensation, fringe benefits, or vacation pay, as
well as any other amounts owed to Executive by Employer), to the
extent of the amounts Executive owes to
Employer. Whether or not Employer elects to make any
set-off in whole or in part, if Employer does not recover by means
of set-off the full amount Executive owes it, calculated as set
forth above, Executive agrees to pay immediately the unpaid balance
to Employer.
5. Termination
or Discharge By Employer.
5.1
For Cause. Employer will have the right to
immediately terminate Executive’s services and this Agreement
for “Cause.” “Cause” shall be
determined in the discretion of Employer, and shall mean
Executive: (i) has engaged in gross
negligence, incompetence or willful misconduct in the
performance of his duties, (ii) has refused, without proper reason,
to perform his duties, (iii) has willfully engaged in conduct that
is materially injurious to Employer or its subsidiaries (monetarily
or otherwise), (iv) has committed an act of fraud, embezzlement or
willful breach of a fiduciary duty to Employer or an affiliate
(including the unauthorized disclosure of Confidential Information,
as such term is defined in Section 8 of this Agreement, or the
unauthorized disclosure of proprietary material information of
Employer or an affiliate) or, (v) has been convicted of (or pleaded
no contest to) a crime involving fraud, dishonesty or moral
turpitude or any felony.
Upon
termination of Executive’s employment hereunder for Cause,
Executive will have no rights to any unvested benefits or any other
compensation or payments after the termination date.
5.2
Without Cause, Death, or Disability. Employer
may terminate Executive’s employment under this Agreement
without Cause and without advance notice; provided ,
however , that if the termination by Employer without Cause
is prior to expiration of the original term, or if
Executive’s employment is terminated by Executive’s
death or disability, Employer will pay, as severance pay,
Executive’s Base Salary at the rate in effect on the
termination date for a period of 6 months, plus one month for each
year that Executive has been with the Company, or through
expiration of the original term, whichever is a shorter period of
time; provided, however , that in any event the
Executive shall be entitled to a minimum of 6 months of severance
pay.
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(a) Such
payments will be made no later than 60 days following the date of
Termination of Executive, and will be subject to all appropriate
deductions and withholdings. Upon termination of
Executive without Cause or for death or disability, all unvested
benefits (whether equity or cash benefits and bonuses) previously
granted to the Executive will vest immediately upon such
termination.
(b) For
purposes of this Agreement, “disability” means the
incapacity or inability of Executive, whether due to accident,
sickness or otherwise, as determined by a medical doctor acceptable
to the Board of Directors of Employer and confirmed in writing by
such doctor, to perform the essential functions of
Executive’s position under this Agreement, with or without
reasonable accommodation for an aggregate of 90 days during any
period of 180 consecutive days, or such longer period as may be
required under applicable law.
(c) Notwithstanding
the foregoing, in the event of a termination by Employer without
Cause during the 12-month period following a “Change of
Control,” as defined under Section 6.2 below, then the
compensation to Executive provided under Section 6.2 shall govern.
The Executive agrees that his eligibility to receive any and all
amounts described in this Section 5.2 shall be subject to and
contingent upon the Executive’s execution of a full and
complete general release in favor of Employer and its affiliated
persons and entities, reasonably satisfactory to Employer in its
sole discretion.
6. Termination
By Executive.
6.1
Termination By Executive for Good Reason.
Executive shall have the right to terminate this Agreement for
“Good Reason.” “Good Reason”
shall mean any one of the conditions set forth below, provided that
Executive must provide notice to the Employer within ninety (90)
days of the existence of such condition and the Employer will have
thirty (30) days from receipt of such notice to remedy the
condition. If the condition is not remedied within such
30 day period, the following conditions will constitute “Good
Reason”:
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(i) Employer’s material breach
of the terms of this Agreement or any other written agreement
between Executive and Employer;
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(ii) the
assignment to Executive (without the Executive’s consent) of
any duties that are substantially inconsistent with or materially
diminish Executive’s position, as such position was defined
on the Effective Date of this Agreement or immediately prior to a
Change of Control, as such term is defined in Section 6.2 of this
Agreement; or
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(iii) a
requirement that Executive (without the Executive’s consent)
be based at any office or location more than 50 miles from
Executive’s primary work location, as such position was
defined on the Effective Date of this Agreement or immediately
prior to a Change of Control, as such term is defined in Section
6.2 of this Agreement (not including reasonable travel by the
Executive consistent with the travel obligations of similar
executives holding similar positions with similar
responsibilities).
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In the event
Executive terminates this Agreement for Good Reason, compensation
shall be provided to the Executive in such amounts and on such
terms as set forth in Section 6.2 of this
Agreement. Notwithstanding the foregoing, in the event
that the Executive’s employment is terminated for any reason
other than for Cause or as a result of the Executive’s death
or disability (and for clarity, shall include termination by
Executive for Good Reason), during the 12-month period following a
Change of Control, then the compensation to Executive provided
under Section 6.2 shall govern.
6.2
Termination by Executive due to Change of
Control. For purposes of this Agreement, a
“Change of Control” shall mean the happening of any of
the following:
(i) Any “Person” (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”) is or becomes the
“Beneficial Owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of Employer
representing more than 50% of the total voting power represented by
Employer’s then outstanding voting securities without
the approval of not fewer than two-thirds of the Board of Directors
of Employer voting on such matter, unless the Board of Directors
specifically designates such acquisition to be a change of
control;
(ii) A merger or consolidation of Employer
whether or not approved by the Board of Directors of Employer,
other than a merger or consolidation that would result in the
voting securities of Employer outstanding immediately prior thereto
continuing to represent (either by remaining outstanding
